Monday, March 14, 2022

Evening Note for Monday, March 14

Thought for the Evening: A Natural Law Theory of Human Rights

I am currently reading Petar Popović's excellent Natural Law & Thomistic Juridical Realism, which is about rights in the sense of juridical goods, and it has led me to try to think through a bit more clearly my own view of how natural law relates to human rights.

We run into terminological issues almost immediately. The original notion of ius is primarily applied to things. We still do use the term 'right' in this way; we might say, for instance, that a particular piece of land is our right. This is right as juridical good, sometimes called (a bit misleadingly) objective right. It can be understood at a general level -- in which case ius is what iustitia or justice is about -- or about a particular case, in which it is the thing (of whatever sort) that is one's right. In our day, though, we very often speak of rights as something possessed by the person allowing them to make claims on something else; these are sometimes called (even more misleadingly) subjective rights. I think further (although this is less often remarked) people often equivocate about whether in speaking of these things they are referring to the title by which we are allowed something or the obligation by which others have to allow it or both together. This all leads to endless confusions.

So let's start with a bit of tidying-up. A right involves:

(1) an obligation
(2) some good designated as due under that obligation
(3) a title by which it is specifically due to the titleholder

All of these are sometimes given the name 'right', but I will call these, successively, law, jural good, and title. I will call the possession of a title by which a jural good is due to you the right to the jural good, whatever that may be. So if you have a right to use an item, this means that there is a law under which use of the item is due to you because of a title connecting you to the use of the item. When speaking of 'human rights', I mean the whole sets of having-rights-to-jural-goods in which the law is due to human reason and the title is possessed by human nature.

The jural good is the keystone here, so let's start with that. We find in human life that we often owe things to people; it is a debt, something due to them. A good example is a trade: I give you something, so you owe me something in return so that this exchange is good for both of us. Justice in the strict sense is the virtue of rendering to another what is due to them according to a standard of equality. The object of justice is the jural good, what it is that is owed. For instance, in a typical trade, if you have given me some product, I owe you payment, which is the jural good. (Note, as a side matter, that I do not owe you money, in a generic sense, but payment. This is actually important for a lot of trades, that what I owe you has to be something that is acceptable to you as payment for what you have given me, and is why I cannot just substitute any monetary equivalence -- for instance, a foreign currency, or an investment with the promise it will collect what I owe -- because there are lots of situations in which things that resulted in you getting the same amount of money would nonetheless not be acceptable as a payment.) But the idea is more general than trades. If you have a right to a trial by jury, trial by jury is the jural good, that which you are owed. And the jural good is the object of the virtue of justice; it is how acts of justice are specified.

Nothing can be owed without an obligation; therefore there must be some appropriate law for there to be any jural good at all. The connection between rights and obligations has long been noted; for every right, there have to be obligations. The reverse is not necessarily true. We have obligations that are not obligations of justice. We are obligated to cultivate every virtue, but some virtues do not affect other people (therefore there is no space for 'rendering to another'), and even when confining ourselves to obligations that concern other people, you can have obligations that do no identify any debt (nothing owed, or owed only in a figurative sense) or that have no standard of equality (no way to render what is owed, so something else must be substituted). However, some obligations do establish a debt and standard for paying it so that the debt is paid, or in other words, they do establish that something is due and what counts as offering what is due. This law establishing a jural good could be of many different things; it can be contract, or a statute, or any number of other things.

If a jural good is due under some law, there must be some way to identify to whom it is due. This is the title. The title is some fact that, under the law, marks you as being the 'owner' of the jural good, that renders it yours, in the sense that it is due to you in particular. Property titles and deeds are the obvious example, but titles can be of many different kind. Parental care is due to the child; the right arises because the child possesses the title for parental care, namely, being the recognizable child of the parent in the sense required by the obligation. 

Natural law theory is a general theory of obligation. According to it, we have principles of practical reason that are also obligations. In Aquinas's account, for instance, a principle of practical reason is an obligation or law when it is ordered to common good. (The other three requirements for an obligation in Aquinas's account -- rationality, legitimate authority, and promulgation -- are automatically true for principles of practical reason; but principles of practical reason can concern matters other than common good.) Common good is not some highly technical term of art; it literally is just good shared in common rather than portioned exclusively out to people. Principles of practical reason are obligations when they concern common good. There are many different common goods, because every community has its own common good. That is what makes it community, communitas literally being the state of having good in common, and every community is defined by its common good. Our concern here is with the common good that constitutes the entire human race as a community. We certainly are such, and there are goods we share in common as human.

This is not quite enough yet, though. Not all obligations result in rights. Rights are formed by obligations indicating that something is due such that it may be rendered to one to whom it is due. These are precepts of justice; they are various, but they all can be interpreted as saying that something, usually an action but often derivatively a physical object as well, is owed to another in such a way that the debt can be satisfied. This is the jural good, and once you have a jural good, you have the basis for rights. 

On the basis of all this, we can say that in some cases we find the following conditions met:

(1) the law designates a jural good by establishing something as owed and renderable;
(2) the law is one that we have by human nature and that concerns the common good of the human race, so that we all owe the jural good all the time;
(3) the title is human nature, that is to say, we are all owed the jural good because we are human.

This is a human right; human right is when natural law intersects natural title. For instance, human beings are owed protection from being arbitrarily killed by natural law, so that it would be unjust not to protect someone from arbitrary killing whenever it was in your power to do so; this establishes a jural good, and the title for that good is human nature, because we owe it to all human beings just because they are human. That we all have a right to life. If someone denies that something is a human right, on the other hand, they are claiming that if fails to meet at least one of the above three conditions.

Related Evening Notes post

Person as Subsistent Right

Various Links of Interest

* Manuel Fasko, The Retrieval of the Letter 'To the Author of the Minute Philosopher' from September 9, 1732: A Note (PDF)

* Oskari Juurikkala, The Two Books of God: The Metaphor of the Book of Nature in Augustine (PDF)

* Charles H. Pence, Whatever Happened to Reversion? (PDF) -- a fascinating look at how an idea (in this case from biology) can be regarded as essential for any scientific theory in a field in one era and then fall away completely.

* Lauren Kopajtic, Learning to Read: A Problem for Adam Smith and a Solution from Jane Austen (PDF)

* Andy Greene, 'What Is a Yute?': An Oral History of My Cousin Vinny

* David P. Barash, Even Worms Feel Pain

* Gabriel Citron, Jewish Philosophical Conceptions of God (PDF)

* Enea Bianchi, Philosophies of Archery (PDF), looks at the influence of archery on philosophy throughout the ages.

* Valtterri Viljanen, The Early Modern Rationalists and Substantial Form: From Natural Philosophy to Metaphysics (PDF)

* Robert verBruggen, Fatal Police Shootings and Race: A Review of the Evidence and Suggestions for Future Research

* Marc Lange, What is a law of nature?

* Matthew D. Walker, Punishment and Self-Cultivation in Confucius and Aristotle (PDF)


* Gyula Klima has been awarded the Knight's Cross of the Hungarian Order of Merit.

Currently Reading

Henryk Sienkiewicz, Quo Vadis
Petar Popović, Natural Law & Thomistic Juridical Realism
Vladimir Soloviev, The Justification of the Good